[2018] KEELC 4125 (KLR)
Given that both parties consented to the orders sought in the Notice of Motion and there was no objection, the court exercised its discretion under the Civil Procedure Rules and the Civil Procedure Act to grant the directions requested. The court deemed the originating summons and supporting affidavit as the plaint,...
Source-derived case information.
- Citation
- [2018] KEELC 4125 (KLR)
- Parties
- Applicant: Alfred Obuya Omollo (Suing as the Legal Administrator of the Estate of Dalmas Amolo Owino, Deceased); Respondent: Joseph Oloo Akal
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 735 of 2017
- Procedural Posture
- Miscellaneous Application / Interlocutory Application Ruling on Directions for Hearing
- Outcome
- Application allowed as prayed (orders 2 to 5 granted).
- Judges
- GMA Ongondo
- Legal Topics
- Originating Summons Procedure, Directions for Hearing, Viva Voce Evidence, Exchange of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Obuya Omollo (Suing as the Legal Administrator of the Estate of Dalmas Amolo Owino, Deceased)
Applicant
Joseph Oloo Akal
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Application Ruling on Directions for Hearing
Legal Issues
- 1 Whether the court should grant directions for the manner in which the matter should proceed.
- 2 Whether the originating summons and supporting affidavit should be deemed as the plaint and the replying affidavit as the statement of defence.
- 3 Whether the suit should be heard by viva voce evidence.
Ratio Decidendi
Given that both parties consented to the orders sought in the Notice of Motion and there was no objection, the court exercised its discretion under the Civil Procedure Rules and the Civil Procedure Act to grant the directions requested. The court deemed the originating summons and supporting affidavit as the plaint, and the replying affidavit as the statement of defence, to facilitate the hearing of the suit by viva voce evidence. The court further directed the parties to file and exchange their witness statements and documents within 30 days, ensuring compliance with the relevant procedural rules and promoting the expeditious and fair determination of the matter.
Court Disposition
Application allowed as prayed (orders 2 to 5 granted).
Orders
- The originating summons and supporting affidavit are deemed as the plaint.
- The replying affidavit, if any, is deemed as the statement of defence.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MIGORI
ELC NO. 735 OF 2017(o.s)
(Formerly KISII ELC CASE 415 OF 2015)
ALFRED OBUYA OMOLLOSuing as the Legal Administrator of the of the Estate of DALMAS AMOLO OWINO,DECEASED…………………..…………………….PLAINTIFF/APPLICANT
VERSUS
JOSEPH OLOO AKAL…………………………………DEFENDANT/RESPONDENT
RULING
1. This ruling relates to a Notice of Motion dated 26/9/2017 brought under Order 37 Rules 16 & 18 of the Civil Procedure Rules, 2010 and Sections 1A, B & 3A of the Civil Procedure Act and All enabling laws. The Applicant/Plaintiff seek the following orders;-
1. THAT the Honourable Court be pleased to give appropriate and/or suitable Directions as to the manner in which the instant matter should proceed.
2. THAT the Honourable court be pleased to direct and/or that he Originating Summons, together with the Supporting Affidavit, be deemed as the Plaint,whilst on the other hand, the Replying Affidavit, if any, to the Originating Summons, be deemed as he statement of defence.
3. Consequent to prayer 2 hereinabove, the Honorable Court be pleaded to direct and/or Order that the Originating Summons herein, be heard and disposed of, by way of Viva voce evidence.
4. The Honourable court be pleased to direct and/or order the parties to file and exchange their respective witness statements, bundle of documents and such other necessary documents, in compliance with Order 3 Rule 2 & 7 Rule 5 of the Civil Procedure Rules, 2010.
5. Costs of this application do abide the cause.
6. Such further and/or other orders be made as the court may deem fit and expedient.
2. Ms. Mireri counsel for the Plaintiff/Applicant request the Court to grant the orders as prayed therein.
3. The Defendant appearing in person has no objection to the grant of orders sin the Notice of Motion. He concurs with the prayer.
4. I accordingly allow orders 2 to 5 sought in the Notice of Motion.
5. I direct and order that the parties file and serve documents and or exchange their documents within 30 days from the date hereof.
6. Hearing of the suit by viva voce evidence be on 23/4/2018.
7. Orders accordingly
DELIVERED, SIGNED and DATED in open court at MIGORI this 18th day of JANUARY 2018.
G.M.A. ONGONDO
JUDGE
In presence of :-
Mr. Mireri counsel for the Plaintiff/Applicant
Joseph Oloo Akal in person
Tom Maurice – Court Assistant
G.M.A. ONGONDO
JUDGE